FOR IMMEDIATE RELEASE
Friday, May 7, 1999
US Export Control Laws on Encryption Ruled Unconstitutional
EFF-Sponsored Case Scores Big Victory
for Free Speech, Privacy, and Security on the Internet
CONTACTS:
Cindy Cohn, McGlashan and Sarrail
cindy@mcglashan.com
Tara Lemmey, Electronic Frontier Foundation
tara@eff.org
John Gilmore, Electronic Frontier Foundation
gnu@toad.com
SAN FRANCISCO, CA--The Ninth Circuit Court of Appeals has ruled that the
federal government's restrictions on encryption are unconstitutional, affirming
a lower court's ruling that export control over cryptographic "software and
related devices and technology are in violation of the First Amendment on the
grounds of prior restraint."
"The Court understood the strong First Amendment issues at stake here," noted
Cindy Cohn, lead counsel for the Bernstein litigation team. "The decision is
thorough and should stand up to further review."
The case has been sponsored by EFF since 1995. "We sponsored Professor Dan
Bernstein's case because of its importance to society, free expression,
electronic commerce, and privacy in the digital world," said Tara Lemmey, EFF's
President and Executive Director.
Encryption, the process of coding and decoding computerized information, is the
most critical technological solution to protecting privacy and keeping computer
networks secure. Acknowledging this point, the court said "[t]he availability
and use of secure encryption may offer an opportunity to reclaim some portion
of the privacy we have lost. Government efforts to control encryption thus may
well implicate not only the First Amendment rights of cryptographers intent on
pushing the boundaries of their science, but also the constitutional rights of
each of us as potential recipients of encryption's bounty."
The court recognized the case's impact on society by saying "...it is important
to point out that the [Bernstein case] is a suit not merely concerning a small
group of scientists laboring in an esoteric field, but also touches on the
public interest broadly defined."
"The US government has wielded these export controls to deliberately eliminate
privacy for ordinary people," said John Gilmore, co-founder of EFF. "The
controls created wireless phones that scanners can hear, e-mail that's easy to
intercept, and unsecured national infrastructures that leave us all vulnerable.
Misguided national security bureaucracies use these controls everyday, to
damage the nation they are sworn to protect, and to undermine the constitution
they are sworn to uphold. Today's ruling is a giant step toward a sane policy."
The government, led by Justice Department attorney Scott McIntosh, argued that
the export control laws on encryption are necessary to protect U.S. national
security. Even if the export control laws are in fact regulated speech,
McIntosh argued, if the government's intent was to regulate something other
than publication, it only needed to show that the rules were "narrowly
tailored" to serve a "substantial government interest." The court disagreed. "
[B]ecause the prepublication licensing regime challenged here applies directly
to scientific expression, vests boundless discretion in government officials,
and lacks adequate procedural safeguards, it constitutes an impermissible prior
restraint on speech," wrote the two assenting judges.
Judge Bright indicated that due to the importance of the case "it may be
appropriate for review by the US Supreme Court." EFF anticipates that the
government will ask for a stay of this ruling pending appeal. If granted, the
stay would prohibit encryption exports even within the Ninth Circuit's
jurisdiction, including all federal courts in California, Oregon, Washington,
Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana
Islands, until the matter is finally resolved.
Details on the Bernstein case, including information on the lower court's
rulings, are available on the Internet at: http://www.eff.org/bernstein
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The Electronic Frontier Foundation ( http://www.eff.org ) is the leading global
organization building the bridge between technical architectures and legal
frameworks to support the rights of individuals in an open society. Founded in
1990, EFF actively encourages and challenges industry and government to support
free expression, privacy, and access in the information society. The Electronic
Frontier Foundation maintains the 4th most-linked-to Web site in the world.
This victory would not have been possible without the sharp skills of the
Bernstein legal team:
Cindy A. Cohn,
McGlashan & Sarrail
Lee Tien
James Wheaton & Elizabeth Pritzker,
First Amendment Project
Robert Corn-Revere,
Hogan & Hartson
M. Edward Ross,
Steefel, Levitt & Weiss
Dean Morehous & Sheri A. Byrne,
Thelen, Marin, Johnson & Bridges
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